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12/22/97 MAURICIO BARRAZA AND THERESA BARRAZA v.

December 22, 1997

MAURICIO BARRAZA AND THERESA BARRAZA, PLAINTIFFS-APPELLANTS,
v.
TOOTSIE ROLL INDUSTRIES, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 92 L 987. Honorable Philip Bronstein, Judge Presiding.

The Honorable Justice O'mara Frossard delivered the opinion of the court. Rakowski and Tully, JJ., concur.

The opinion of the court was delivered by: Frossard

The Honorable Justice O'MARA FROSSARD delivered the opinion of the court:

In this personal injury case, Mauricio and Theresa Barraza (plaintiffs ) filed a complaint in negligence and strict product liability against defendant Tootsie Roll Industries following plaintiff Mauricio Barraza's injury at his workplace, the Sweets Mix factory. Plaintiffs appeal from the trial court's grant of summary judgment in favor of the defendant.

The trial court granted summary judgment on the basis that defendant Tootsie Roll Industries was Mr. Barraza's employer as a matter of law and thus immune from a common law action by plaintiffs against it. The exclusive remedy available to an injured worker against his employer is through the Illinois Worker's Compensation Act. 820 ILCS 305/1(a)(4) (West 1994). The issue on appeal is whether the trial court properly granted summary judgment to defendant Tootsie Roll Industries on the basis that it was Mr. Barraza's employer thereby barring plaintiffs from pursuing a common law action against defendant.

I. FACTS

Plaintiff Mauricio Barraza began working at the Sweets Mix factory after his cousin, a worker at the factory, informed him of a job opening there. He applied for the job directly to Sweets Mix and began work the same day. His job involved loading sugar into bags using a machine called a "sugar bagging machine." Sweets Mix, located at Lake Calumet Harbor, is a wholly owned subsidiary of Tootsie Roll Industries. It purchases domestic and foreign sugar and makes it into sweeteners for use by Tootsie Roll Industries. The factory's location is designed to take advantage of a "foreign trade zone," which offers financial advantages by processing raw sugar before it is technically admitted into the United States via customs.

Mr. Barraza was paid through a company called Bee Groth, a temporary employment service. Bee Groth entered into a contract with Sweets Mix and Tootsie Roll Industries to provide laborers for the Sweets Mix plant, and agreed to provide workers' compensation insurance covering both Sweets Mix and Tootsie Roll Industries. Under the contract, Bee Groth agreed to indemnify and hold harmless both entities for any workers' compensation claim which could arise through the employment of workers under the contract. Mr. Barraza applied for his job not at Bee Groth or Tootsie Roll Industries, but at the Sweets Mix factory. He testified he was unaware of what connection defendant Tootsie Roll Industries had with the Sweets Mix operation.

The Sweets Mix factory is the sole source of sugar for candy production by Tootsie Roll Industries. Though Sweets Mix is actually a separate corporation, all of the officers of Sweets Mix are also on the board of Tootsie Roll Industries, though the same is not true vice versa. In addition, the two corporations regularly file consolidated federal tax returns. The two companies maintain operations at different locations, but share the same corporate address. At the time of the incident involving Mr. Barraza, Tootsie Roll Industries owned all of the processing equipment in use at Sweets Mix, including the machine which caused his injury.

Defendant claims that all of the direction and supervision of Mr. Barraza at the plant was conducted by employees of Tootsie Roll Industries. Plaintiffs, however, state these persons were actually paid by entities other than Tootsie Roll Industries. Defendant agrees that some of these individuals received their paychecks through a "payroll subsidiary," though the benefit plans for the employees came directly from Tootsie Roll Industries. According to the injured plaintiff, he was unaware of the relationship between Sweets Mix and Tootsie Roll Industries and the record is silent as to whether Mr. Barraza knew his supervisors were employees of Tootsie Roll Industries.

Mr. Barraza was severely injured while working on the sugar-bagging machine. Plaintiffs initiated an action before the Industrial Commission against Sweets Mix and Bee Groth for the injuries sustained in the accident. The arbitrator determined that Mr. Barraza "was loaned by Respondent Office Assistants, Inc. a/k/a/ Bee Groth, Inc., to The Sweets Mix Company," and held that Bee Groth was the party "primarily responsible" for payment and liability. Plaintiffs then filed suit against Sweets Mix, Tootsie Roll Industries, and the manufacturers of the machine, Key West Metal Fabricators, Inc., and Screw Conveyor Corporation. Since filing the lawsuit, plaintiffs have settled with defendants Key West Metal Fabricators, Inc., and Screw Conveyer Corporation. On September 17, 1993, defendant Sweets Mix obtained summary judgment on the basis that it was one of Mr. Barraza's employers. The strict liability counts against the defendant Tootsie Roll Industries were dismissed on May 22, 1995, as defendant had not been involved in selling the machine which caused Mr. Barraza's injuries.

Finally, on November 7, 1995, the trial court granted defendant Tootsie Roll Industries' summary judgment motion on the basis that it was an employer of the injured plaintiff. It is from this order that plaintiffs appeal.

II. ANALYSIS OF ISSUES

A. Summary judgment

The appellate review of a grant of summary judgment is de novo. USG Corp v. Sterling Plumbing Group, Inc., 247 Ill. App. 3d 316, 318, 617 N.E.2d 69, 186 Ill. Dec. 830 (1993). Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1994). The function of the appellate court in reviewing the grant of summary judgment is not to decide disputed issues of fact but rather to determine whether a factual dispute exists. Kerr v. Illinois Central R.R. Co., 283 Ill. App. 3d 574, 583, 670 N.E.2d 759, 219 Ill. Dec. 81 (1996). The court must construe the evidence strictly against the movant and liberally in favor of the opponent. Quality Lighting, Inc. v. Benjamin, 227 Ill. App. 3d 880, 883, 592 N.E.2d 377, 169 Ill. Dec. 890 (1992). Summary judgment is a drastic means of ...


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